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Cable Operators Ask for CALM Act Leniency

July 12, 2011

WASHINGTON--A lobbying organization for small and medium market cable operators is asking the FCC to minimize the regulatory burden of the recently passed CALM Act on their members.

The CALM Act, which was signed into law in December by President Obama, requires broadcasters to ensure that commercials are not louder than regular programming. The law requires stations to follow ATSC recommended practices for regulating audio in the DTV signal. The American Cable Association, in comments filed with the FCC acknowledged that loud commercials are a problem but also noted that digital technology has solved many of the problems.

“Independent cable operators agree that jarring volume spikes at commercial breaks are a concern to consumers, although these annoyances have largely gone away with the industry’s adoption of new technologies and practices in recent years,” ACA President and CEO Matthew M. Polka told the commission.

Nevertheless, the ACA asked the FCC to implement CALM Act rules so as the minimize cost burdens. “The CALM Act seeks to address remaining concerns about loud commercial advertisements in a targeted manner,” Polka said. “That said, implementation of the CALM Act, including obligations to deploy, utilize, and maintain equipment, as well as the structure of the complaint process, could place costly compliance burdens on independent cable operators, even ones not directly involved in the insertion of advertisements. In adopting its regulations, the FCC should seek to avoid imposing any undue burdens on these operators.”

The ACA asked the commission to give pay-TV providers some leeway in handling broadcast audio due to the fact no equipment exists to permit real-time monitoring, decoding and re-encoding of commercials. It also said that most of its members do not insert commercial advertisements and that most ads shown on ACA member systems are inserted by broadcasters and national cable networks. Since they are simply passing through the commercials, the lobbyist told the FCC that they should not be held responsible for ensuring the ads comply with the law.

ACA urged the FCC to reconsider its tentative view that CALM Act requirements must be met by only the pay-TV provider and not a third party. If the commission does decide that ATSC requirements apply to those pay-TV that are just passing through the broadcast signal, it should find in favor of compliance if the pay-TV provider has a “good-faith” explanation that the commercials conform with the ATSC regs. It also noted that for those pay-TV providers that do insert local commercials, the fact that they have installed and are utilizing and maintaining equipment to ensure compliance with the regulations be considered enough to be in compliance.

Since loudness can be subjective, the ACA recommended that complaints filed under the CALM Act include verifiable information about the date and time when the offending ad was shown, along with the name of the network and a description of the ad, including, if possible, the extent to which the ad was louder than the long-form program.

The lobbyist also asked that any penalties imposed against a small cable operator be lenient unless there is a pattern of offenses. It also asked the commission to grant an automatic one-year financial hardship waiver to small cable providers that certify the need to install, utilize and maintain any equipment to ensure compliance with the CALM Act even if the rules just cover the insertion of local ads.

Public comments on the CALM Act to the FCC were due July 5, 2011, and reply comments are due July 18.